CIVIL PROCEDURE CLASS 41

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CIVIL PROCEDURE CLASS 41

• Professor Fischer
• Columbus School of Law
• The Catholic University of America
• Nov. 30 2005

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ELEMENTS OF ISSUE PRECLUSION (s. 27 Restatement
(Second) of Judgments

• Same issue
• Actually litigated
• Actually decided (final valid judgment ion the
  merits)
• Determination is essential to judgment
• Some state courts require mutuality, i.e. same
  parties

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JUDGMENT ON ALTERNATE GROUNDS NECESSARY?

• What if judgment is explicitly based on
  alternate grounds? Strictly speaking, neither
  ground alone is necessary to judgment.
• Yet each supports the judgment and is made
  against the losing party, so all may be reviewed
  on appeal
• Old rule each alternate ground entitled to
  preclusive effect

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JUDGMENT ON ALTERNATE GROUNDS

• Currently, there is a division of authority on
  this question.
• First Restatement of Judgments BOTH alternative
  findings are essential
• Restatement (Second) of Judgments states that
  if a judgment of a court of first instance is
  based on determinations of two issues, either of
  which standing independently would be sufficient
  to support the result, the judgment is not
  conclusive with respect to either issue standing
  alone.

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Alternative Determinations?

• A sues Z for negligence. Case is tried to a jury.
  Jury returns a special verdict finding that 1. Z
  was negligent 2. A not negligent. Court enters
  judgment in favor of A.
• This jurisdiction is a contributory negligence
  state

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Due Process and Mutuality

• Due process against whom can preclusion be
  asserted?
• Mutuality by whom can preclusion be asserted?

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Due Process Limit on Collateral Estoppel

• Applies only to litigant who has already lost on
  the issue, not someone who has never had a chance
  to litigate the issue.
• Preclusion can only be asserted AGAINST one who
  was a party or in privity with a party

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MUTUALITY

• Only people who can use preclusion in case 2 are
  people who would be bound by the judgment in Case
  1 based on fairness
• Under traditional mutuality approach, only people
  who can assert preclusion in Case 2 are those who
  were parties or in privity with parties in case 1

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MUTUALITY

• Not based in constitutional principles
• Courts thus are free to jettison it
• Some have moved to permit non mutual assertion
  of issue preclusion (that is, using preclusion by
  someone not a party to Case 1)

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Mutuality

• Offensive vs. Defensive use of collateral
  estoppel
• You should know the case of Blonder-Tongue, 402
  U.S. 313, cited in Parklane at 916.

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Blonder-Tongue nonmutual defensive issue
preclusion

• Involved infringement of a patent
• Case 1 P sued D1 alleging patent infringement
• Judgment in favor of D1 patent invalid
• Case 2 P sued D2 alleging infringement of same
  patent
• Can D2 assert preclusion? yes left open
  possibiiity of non mutual offensive collateral
  estoppel

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Parklane Hosiery v. Shore (1979)

• Violation of federal securities laws by
  corporation/managers/stockholders
• Case 1 SEC sues Ds alleging materially false and
  misleading proxy statement in connection with
  merger. SEC wins. Finding that proxy statement
  was materially false and misleading
• Case 2 Ps sue same Ds on same basic claim re
  same proxy statement. Can Ps rely on issue
  preclusion?

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Non Mutual Offensive Collateral Estoppel

• Justice Stevens in Parklane (CB p. 917)
  Offensive use of collateral estoppel does not
  promote judicial economy in the same manner as
  defensive use does.
• Why not?

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Non Mutual Offensive Collateral Estoppel less
judicial efficiency

• Why? No joinder incentive in defensive case
  incentive to join all potential defendants to
  Case 1
• Offensive If P1 loses in Case 1, P2 not bound by
  judgment (due process). If P1 wins, P2 can use
  P1s victory in Case 2. Likely increase amount of
  litigation

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Offensive Collateral Estoppel

• Provides incentive for Ps to wait and see
• May be unfair to a defendant 1. where D may have
  little incentive to defend Case 1 with vigor 2.
  multiple inconsistent judgments 3. D did not have
  a full and fair opportunity to litigate

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Parklane

• Did Court permit nonmutual offensive collateral
  estoppel, given its concerns?

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Parklane

• Did Court permit nonmutual offensive collateral
  estoppel, given its concerns? On facts of case,
  it did since Court convinced that party using
  issue preclusion could not easily have joined
  the earlier action and use of issue preclusion
  not unfair to the defendant

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4 PARKLANE FACTORS

• 1. Could nonparty have joined prior litigation?
• 2. Was subsequent litigation foreseeable at time
  of first suit?
• 3. Is judgment being relied on consistent with
  prior judgments against this D?
• 4. Are there any procedural opportunities
  available to D in second action that did not
  exist in the first that would lead to a different
  result?

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Status of Parklane and nonmutual collateral
estoppel

• Led to plaintiff shopping strategy let
  strongest potential claimants sue first
• Does not represent the majority view. It is the
  approach in federal courts and some states (e.g.
  Alaska, SC, NM, Mo.) but many others states (e.g.
  Tenn, Tex) have not endorsed it

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(No Transcript)
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DEFENSIVE NONMUTUAL ESTOPPEL

• Suit 1 P sues D1 (P loses on Issue A)
• Suit 1 P sues D2 (D2 pleads collateral estoppel
  to bar plaintiff from relitigating Issue A)

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OFFENSIVE NONMUTUAL COLLATERAL ESTOPPEL

• Suit 1 P1 sues D (D loses on Issue A)
• Suit 2 P2 sues D (new plaintiff invokes
  collateral estoppel to establish Issue A in her
  suit against D)

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NEW UNIT

• More consideration of venue (forum no conveniens
  and transfer of venue)
• This will not be tested. If it appears on exam
  and a student accurately discusses this material,
  he or she will receive extra credit

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FORUM SELECTION CLAUSES

• Parties may select a venue that is not a
  statutory venue by including a forum selection
  clause in a contract.
• Non-negotiable forum selection clauses have been
  enforced by the Supreme Court.

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FORUM NON CONVENIENS

• Compare this doctrine with
• 28 U.S.C. 1404
• 28 US.C. 1406

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28 U.S.C. 1404

• (a) For the convenience of parties and witnesses,
  in the interest of justice, a district court may
  transfer any civil action to any other district
  or division where it might have been brought
• PIPER - After removal to US District Court for
  Central District of CA, action is transferred to
  US District Court for Middle District of PA
• Cases are usually transferred under this section
  between federal district courts rather than
  dismissed for forum non conveniens

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Improper Venue Provision

• 28 U.S.C. 1406(a) permits court to dismiss if
  venue has improperly been laid or if it be in
  the interest of justice, transfer the case to
  any district or division in which it could have
  been brought

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PIPER AIRCRAFT CO. V. REYNO (1981) CB 784

• Landmark decision on forum non conveniens
• Who is the plaintiff?
• Who is plaintiff suing?
• What is the cause of action?
• Where does plaintiff bring the action?
• Why does plaintiff choose that forum?

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Piper Aircraft Co. v. Reyno

• Wrongful death suit originally brought in
  Superior Court of California by Gaynell Reyno on
  behalf of 5 Scottish passengers
• Defendants were Piper Aircraft Co. (aircraft mfr)
  (PA) and Hartzell Propeller Inc. (OH) (propeller
  mfr)

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Scottish Legal System

• See also Kevin F. Crombies useful site
  http//www.scottishlaw.org.uk/

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DEFENDANTS MOTIONS

• Explain the strategies and procedural moves of
  defendants Piper and Hartzell. How did the case
  get from the state court in CA (where filed) to
  the federal court in PA?

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28 U.S.C. 1404

• (a) For the convenience of parties and witnesses,
  in the interest of justice, a district court may
  transfer any civil action to any other district
  or division where it might have been brought
• PIPER - After removal to US District Court for
  Central District of CA, action is transferred to
  US District Court for Middle District of PA

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IN THE U.S. SUPREME COURT

• How does the majority rule in the U.S. Supreme
  Court? Describe Justice Marshalls reasoning in
  his majority opinion.

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PIPER Test

• In applying the doctrine of forum non conveniens
  to a foreign plaintiff, Supreme Court essentially
  follows two steps it had articulated in Gilbert.
  
• 1. Requires a suitable forum in another country
• 2. Considers 4 factors or interests to determine
  which forum would best serve private and public
  interests
• Unfavorable choice of law alone should not bar
  dismissal

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SIGNIFICANCE OF PIPER v. REYNO

• This case extends doctrine of forum non
  conveniens for use in an international context by
  adopting a lower threshold and by decreasing its
  deference to foreign plaintiffs choice of forum
  (takes nationality into consideration)
• The foundation for any modern forum non
  conveniens analysis in an international context.
  
• Decision has prompted continuing criticism

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LORD DENNING

• Famous and long-lived English judge
• As a moth is drawn to the light, so is a
  litigant drawn to the United States.

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Attractions of U.S. Legal System For Foreign
Plaintiffs

• Encouragement by U.S. plaintiffs bar for
  litigants to bring suit in U.S.
• contingency fee arrangements
• extensive pre-trial discovery
• advantageous substantive law
• availability of trial by jury
• tendency for large jury awards